Posts Tagged ‘#FirstAmendment’

Can the government ban public gatherings, church services, political rallies, or protests during a global pandemic? The question isn’t hypothetical. Federal, state and local officials across the United States are struggling to prepare appropriate emergency orders targeted at slowing the spread of coronavirus. Some jurisdictions have banned gatherings of various sizes altogether, while others have banned a variety of assemblies with carveouts for essential services, religious gatherings and for other reasons.

Not everyone is complying with emergency orders, however. In Louisiana, a large Church reportedly continues to hold services with more than 1,000 attendees, defying the governor’s order banning gatherings of more than 50 people. Church officials have suggested the ban violates First Amendment protections of free exercise and freedom of assembly. That may or may not be correct, but few local governments want to find themselves at the tip of the spear of a costly constitutional challenge while trying to handle an emergency.

First Amendment challenges to coronavirus emergency orders may be unavoidable, but local governments may wish to consider a few key principles when preparing or amending them:

Content-neutral limitations on assembly are far more likely to survive constitutional scrutiny than limitations based on the purpose/content of an assembly. The Supreme Court has permitted state and local governments to impose content-neutral restrictions on the time, manner and place of assembly, provided the restrictions further an important governmental interest and leave open alternative means of communication. Content-based restrictions will be subject to the far more rigorous strict scrutiny standard, i.e. whether the order is narrowly tailored to further a compelling governmental interest. The Supreme Court, however, has recognized a state’s police power to promote public health by quarantine or mandatory vaccination since the 1800s. This interest seems even more compelling given the emergent nature of the pandemic response, and even courts applying strict scrutiny might be inclined to uphold thoughtful, well-reasoned bans on assembly.

Consider whether your order can (or should) be tailored to exclude application to protected speech. Several state and local bodies/executives have enacted orders containing exceptions for protected forms of speech or assembly such as church services. These exceptions seem likely to preclude facial constitutional challenges. Whether or not they reflect sound policy, of course, is a decision to be made by each jurisdiction.

Think now about the arguments that will be made later. Whatever degree of scrutiny will ultimately apply to your order, spend time identifying its time, place and manner restrictions. Does the order prohibit mass gatherings everywhere, or only where social distancing cannot be accomplished consistently with medical guidance? Does your order have an expiration date (perhaps subject to renewal) or is it indefinite? Are alternative forms of expression available and adequate? What guidance was considered when crafting your jurisdiction’s order? Consider whether to itemize these issues in the prefatory recitals of your order – or to document them elsewhere for future reference. Also, context is critical and a decision that seems reasonable based on today’s information may seem unreasonable later. If you rely on external guidance from the CDC, state or local health authorities, consider making hard copies or electronic copies organized by date, because that guidance is likely to change over time.

Finally, remember the power of qualified immunity. Governmental officials struggling to craft an appropriate response to the coronavirus outbreak should not have to worry about personal financial liability for their choices. Qualified immunity affords protection officials from individual capacity suits, even where they violate a plaintiff’s constitutional rights unless they violate clearly established law. Local officials will also be entitled to invoke various immunities from state law claims, though the nature and scope of immunity vary from state to state.

The local government team at Freeman Mathis & Gary will continue to monitor emerging constitutional issues arising from governmental response to the coronavirus outbreak.

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Unlike their private-sector counterparts, employees of municipalities, counties, and other public entities have work-related free speech rights that enjoy varying levels of First Amendment protection. Supreme Court law is clear on that broad point, although its contours are sometimes anything but clear. In the 21st-century world of social media and other online forums, figuring out what is protected and what is not can be downright confounding.

Some public entities have simply thrown up their hands and lamented that there is nothing they can do when workers post damaging or embarrassing comments online. Even taking First Amendment protections into account, however, all may not be lost.

The Supreme Court’s basic test for deciding when public employees’ speech is protected is seemingly straightforward. When the speech is pursuant to an employee’s official duties, it is not constitutionally protected and the employee can be disciplined for saying the “wrong” thing. When a public employee speaks in his/her capacity as a citizen on a matter of public concern, however, the speech generally is protected and cannot lead to discipline unless the public employer can show an overriding interest for taking such action.

Predictably, the various appellate courts around the country have not seen eye-to-eye on what that broad guidance means. A number of them, however, use a three-part analysis. The threshold inquiry is whether the public employee was speaking as a citizen on a matter of public concern or as an employee about something of merely personal interest. Second, courts examine whether the employee’s interest in speaking outweighs the government’s interest in managing and maintaining an orderly work environment. Just because speech involves a matter of public concern does not automatically give it absolute constitutional protection. Finally, courts look for evidence that the employee’s speech was a substantial factor in the employer’s decision to terminate employment or otherwise punish the employee.

With the online and social media world now becoming almost ubiquitous, there are growing numbers of cases in which courts rely essentially on this same analysis in the context of adverse employment action taken because of an employee’s online speech. In Duke v. Hamil (*WL 414222 (N.D.Ga. 2014)), for example, a police force demoted one of its officers for posting on his personal Facebook page an image of the Confederate flag, along with the phrase, “It’s time for the second revolution.” The officer claimed that the posting was directed at “Washington politicians” and had nothing to do with his employer. Although the officer quickly removed the image, another Facebook user submitted a screenshot of it to a local television station. After the department began receiving complaints, the officer was demoted for publicly espousing his political views.

In considering the officer’s subsequent lawsuit, the court determined that the speech clearly was regarding a matter of public concern. Nonetheless, three factors led it to rule in the department’s favor and dismiss the lawsuit. First, the officer was a high-ranking official in the department; therefore, his posting had the potential to cause significant disruption both within the department and among the public.

Second, his personal Facebook page disseminated the message widely and publicly. The officer’s speech received broad attention and implicated the public’s trust in law enforcement. His actions reflected on the department’s reputation significantly and the posting appeared to advocate revolution, which could undermine confidence in the department because the officer was supposed to uphold law and order.

Third, while the speech was arguably political, its message could just as easily be interpreted as divisive, prejudicial and offensive, lacking substantive content that was important to the public’s interest in free speech. Under the circumstances, the chief of police did not have to wait to see what happened as a result of the controversy before taking action to abate it.

Likewise, in Graziosi v. City of Greenville (5th Cir., No. 13-60900 (Jan. 9, 2015)), a police sergeant posted a series of scathing comments against her chief on Facebook after he refused to send a representative to the funeral of a police officer from another city killed in the line of duty. Among other comments, she said that “[t]his is totally unacceptable” and asked the mayor “can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty?” Later, Graziosi posted an additional comment that stated “If you don’t want to lead, can you just get the hell out of the way.” Shortly thereafter, she was fired for violating the department’s rules of conduct.

The district court, later affirmed by the Fifth Circuit, dismissed the case, concluding that Graziosi did not speak on a matter of public concern and that, even if she did, the department’s interest outweighed her interest in speaking. Even though the employee invoked the issue of public spending—whether the department failed to send a representative because of the cost—the employee’s primary complaint was that she was personally offended by what she perceived as a slight to a fallen officer. The posts amounted to nothing more than an internal grievance because they constituted a “rant” attacking the police chief and culminating “with the demand that he ‘get the hell out of the way.’” Thus, the speech was not entitled to First Amendment protection. The court also found that Graziosi’s minimal interest in speaking on matters of public concern was outweighed by the city’s substantial interest in maintaining discipline and close working relationships and preventing insubordination within the department.

These cases and others like them demonstrate that public employers do have at least a foothold in their efforts to take action against inappropriate postings by their employees. Disruptive online speech can be the basis for disciplinary action when public employers are able to show that their interests in maintaining the public’s trust, an orderly workplace, and/or any number of other legitimate goals outweigh any First Amendment interest that an employee might otherwise have.

Does the First Amendment protect citizens’ speech and association, or does it prohibit the government’s retaliation to such conduct? At first glance, these goals would appear to be two sides of the same coin—citizens’ free speech is protected by barring the government’s retaliation. But an odd set of circumstances involving a government employee in Patterson, New Jersey, is challenging the notion that a government’s violation of the First Amendment necessarily requires an instance of protected speech or association by a citizen. And last month, the Supreme Court heard oral arguments on this set of circumstances in Heffernan v. City of Paterson. The Court will ultimately decide whether a City’s retaliation against a police officer for his perceived exercise of First Amendment rights violates the Constitution if, in fact, the officer was not actually exercising those rights.

Plaintiff Jeffrey Heffernan was a police officer in Paterson, New Jersey. By all accounts, he was a model officer who received several commendations for his work over a twenty-year career before being promoted to detective. He apparently was a model son, too: when his bedridden mother asked him to drive to town to pick up a mayoral candidate’s campaign sign after her first sign was stolen, he did so that same day. One problem, though, was that the campaign sign promoted a challenger who wished to unseat the then-incumbent mayor. Another problem was that a fellow Paterson police officer—who was assigned to the security staff of the incumbent mayor—saw Heffernan pick up the sign and interact with the challenger’s campaign manager. Heffernan delivered the sign to his mother. But the next day, he was demoted to a “walking post” because of his perceived involvement in the political election.

Heffernan brought § 1983 actions against the City and some of its officials for First Amendment retaliation in the District of New Jersey. The trial court granted summary judgment in favor of the City because Heffernan failed to produce any evidence that he actually exercised his First Amendment rights. On appeal, the Third Circuit agreed: the record clearly established beyond question that Heffernan was not exercising any First Amendment rights when he picked up the sign because he neither intended to communicate a political message nor had any political affiliation with the challenger’s campaign. In his own words, “I was picking up a sign for my mother, and that’s all I was doing.” The Third Circuit then rejected Heffernan’s argument that he could assert a First Amendment retaliation claim under a “perceived support” theory, where the employer’s retaliation is based on a mistaken belief that the employee exercised a First Amendment right. The Third Circuit reasoned that a First Amendment retaliation claim must be predicated on the actual exercise of a First Amendment right, rather than the mere perception of such exercise.

At oral argument before the Supreme Court, the justices examined every facet Heffernan’s “perceived support” theory. On one hand, some justices doubted whether an employee has a First Amendment right to be free from the government’s misperception of his views. As Justice Scalia observed, “he was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason.” Along these lines, Chief Justice Roberts queried whether public employees have other, non-constitutional remedies available for being fired for “the wrong” reason. And the idea of untethering First Amendment retaliation claims from constitutionally protected conduct, especially when other remedies are available, raised a pragmatic concern: might basing retaliation claims exclusively on the government’s motive result in a flood of meritless claims?

On the other hand, some justices espoused the view that when it comes to government retaliation, motive matters. Justice Ginsberg suggested that the thrust of the First Amendment is operating on government, to which it says: “thou shalt not act on the basis of someone’s expression, speech, or belief.” Similarly, Justice Kagan stated her belief that “part of the reason we have these protections is because we worry the government is doing things for impermissible reasons. That the government wants to create a world of speech in which everybody agrees with it and nobody opposes it.” In light of these concerns, the City’s attorney maintained his position that First Amendment claims necessarily require the plaintiff’s exercise of a constitutional right: “It’s called an individual right, not a government wrong.”

The Court’s decision is expected by June. While oral argument suggested that there is at least some disagreement between the justices as to the necessary conditions for a First Amendment retaliation claim, the “highly artificial” nature of the facts, as Justice Alito referred to them, may lead to a narrow holding. Regardless of the outcome, this case shines a light on the importance of respecting government employee’s First Amendment rights in the local government context, where politics often play an outsized role in day-to-day operations.